Estate planning can get confusing. We attorneys use crazy words like testator, corpus, inter vivos, and per stirpes. That's right: some of our terms are so weird, we have to italicize them.
Things get even more confusing when one estate planning term sounds just like another. So it's not surprising whenever our clients ask whether a Last Will and Testament and a Living Will are the same thing (or are at least similar).
The short answer: They are not the same thing. Not even close.
Before we dive in to the distinctions, here is a summary of what we will cover in this post:
- What is a Last Will and Testament?
- How does it differ from a Living Will?
- Do you need a Will AND a Living Will?
You can click the links above to skip to that particular section, or just scroll down the page a bit. It's not a long article.
What is a Last Will and Testament?
To unpack these documents, it is helpful to remember our definition of estate planning: An estate plan says what happens to your STUFF when you die and who takes care of your SELF when you become incapacitated.
A Last Will and Testament falls into the first category: it says what happens to your STUFF after your death. It also does some other important things like appoint a personal representative to manage probate administration — because, yes, a Will must still go through probate.
However, a Will only takes effect after you die. Why does this matter?
Because you can change, alter, amend, or revoke or cancel your Will at any time while you are competent. You can also make a brand new Will that supersedes your old one. What matters is which Will is your LAST Will and Testament.
How is a Will different than a Living Will?
From their names, you might think a Will and a Living Will are very similar. In reality, however, these documents are completely different.
A Living Will says what you want to happen to your SELF if you become incapacitated (e.g., unconscious, dementia, etc.) and someone needs to make end-of-life decisions for you.
A Living Will is commonly part of an Advance Directive for Health Care, which, among other things, states whether you want life-sustaining treatment (e.g., mechanical ventilation) or artificially administered nutrition and hydration (e.g., a feeding tube).
A Living Will is effective as soon as you sign it, as opposed to a Last Will and Testament, which takes effect only after you die. You can change your mind about a Living Will at any time, as long as you are competent.
As you can tell, there are many differences between a Will and a Living Will. However, to best understand your estate plan, here is the main difference that matters: A Living Will does NOT affect your property; it only affects your medical care.
Should I have a Will or a Living Will?
You should have both. Or at least something like them.
Every good estate plan should provide for your medical care and for the disposition of your assets. A Last Will and Testament and a Living Will can help accomplish both of those goals.
Most people know that a Will states who you want to get your "stuff." But it can do so much more than that. A Will allows you to:
- Name an executor who will manage the probate of your estate.
- Make charitable contributions after your death.
- Appoint a guardian for minor children or a disabled relative.
All of these provisions can help avoid costly, stressful, and time-consuming battles in probate court after your death.
But a Will is not the only document that can accomplish these objectives. A Living Trust is an estate planning document that allows you to appoint a trustee to manage your assets in the event of your death or incapacity.
There are many differences between a Will and a Trust, but perhaps the most noteworthy is that property owned by a Trust can avoid probate — meaning you can further avoid the need for expensive and time-consuming lawsuits by properly executing and funding a Trust.
A Living Will is another good way to avoid stressful litigation. Remember the Terri Schiavo case from the early 2000s?
Schiavo had been in a permanent vegetative state for nearly a decade, kept alive by machines even though she had permanent brain damage and no chance of recovery. Schiavo's husband argued that she would not want her life extended by artificial means. Her parents believed otherwise.
While the case reached a dramatic conclusion when Schiavo died in 2005, a Living Will or Advance Directive for Health Care may have been able to avoid the dispute entirely. Everyone was arguing over what Schiavo wanted. So imagine if she had left a document that told them what she wanted!
Bringing it all together, a Last Will and Testament and a Living Will are both very important documents that should be a part of every estate plan. And while there are other documents you should also have — such as a Durable Power of Attorney and a Letter of Instruction — a Will and Living Will are a good start.
Last Will and Testament vs. Living Will
"Legalese" can make estate planning documents difficult to understand; the task is even more difficult when the documents sound like they are the same thing. However, it is very important to understand the differences between a Will and a Living Will. Your estate just might depend on it!
To speak with a qualified attorney about creating, updating, or simply explaining your Last Will and Testament, Living Will, Advance Directive, or other estate planning documents, call the Oklahoma City estate planning attorneys at Postic & Bates to schedule a FREE, no-obligation consultation appointment.
[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]